State ex rel. Wilkins v. King

• Decision Date: 01 October 1945
• Docket Number: 39411
• Parties: State of Missouri, ex rel. Jesse H. Wilkins, Appellant, v. J. H. King, Collector of the Revenue of New Madrid County, Missouri
• Court: Missouri Supreme Court

189 S.W.2d 981

354 Mo. 501

State of Missouri, ex rel. Jesse H. Wilkins, Appellant, v. J. H. King, Collector of the Revenue of New Madrid County, Missouri

No. 39411

Supreme Court of Missouri

October 1, 1945

Motion for Rehearing or to Transfer to Banc Overruled November 5 1945.

Appeal from Dunklin Circuit Court; Hon. James v. Billings Judge.

Affirmed.

H C. Riley and Merrill Spitler for appellant.

(1) The fact that the evidence might have been such to show the title to this land at the time suit No. 9620 was filed, was in J. H. Enright's name and was not J. R. Enright is immaterial, notwithstanding the certificate of title attached to the petition in this case shows the title to the land to have been in the title of J. R. Enright. White v. Lumber Co., 240 Mo. 13, 139 S.W. 553; Flynn v. Tate, 228 S.W. 1070, 286 Mo. 454; Corrigan v. Schmidt, 126 Mo. 304, 28 S.W. 874. (2) The record owner, that is, Hobbs, having been made party defendant in the suit, Gee's rights were cut off by the sale in case No. 6920. Gee v. Bullock, 164 S.W.2d 281, 349 Mo. 1154; Edwards Land & Timber Co. v. Richards, 163 S.W.2d 581; Koch v. Jenkins, 300 S.W. 469. (3) The fact that Hobbs was dead at the time this suit was brought is immaterial, because the statute provides that where the owner of the property is unknown, the suit shall be brought against the owner of record, which was done in this instance. Therefore, none of Hobbs' rights were affected, and so far as his name appeared was only a nominal defendant. Koch v. Jenkins, 300 S.W. 469; Arnett v. Williams, 226 Mo. 109, 125 S.W. 1154; Crook v. Tull, 111 Mo. 283, 20 S.W. 8; Orchard v. Smith, 193 S.W. 574. (4) In the event the court should hold that the lien of the note of Gee Land Co. was not extinguished by the sale for taxes in suit No. 9620, then all the holder thereof had was a right to redeem. Richards v. Earls, 133 S.W.2d 381, 345 Mo. 260; Harrell v. Surface, 165 S.W.2d 322. And Gee having not seen fit to redeem from the sale in suit No. 9620 for a period of almost 10 years would now be barred by laches. Therefore he was not an interested party within the meaning of the Jones-Munger law and having no interest in the land in question, could not redeem from the sale under the Jones-Munger law. Paxton v. Fix, 190 S.W. 328.

Edward F. Sharp and Hal H. McHaney for respondent.

(1) The tax proceedings wherein it is claimed the J. H. Enright note and deed of trust were extinguished were void as to the interest of the holder of the deed of trust for the reason that the true owner of the property, as shown by the record, was not sued, or made a proper defendant in the tax suit. The record title was in the name of J. H. Enright. Suit was brought and service had by publication against J. R. Enright. The owner of the property was a necessary party and where no service was obtained upon the true owner, a judgment and sale thereupon are nullities. Sec. 9953, R.S. 1929; Davis v. Stevens, 124 S.W.2d 1132; Mo. Real Estate & Loan Co. v. Gibson, 282 Mo. 75, 227 S.W. 675. (2) The attempted service in the case at bar by publication in the tax suit against J. R. Enright was a nullity as to the record owner, J. H. Enright. Proctor v. Nance, 220 Mo. 104, 119 S.W. 409; Woodruff v. Lumber Co., 242 Mo. 381, 146 S.W. 1162; Newton v. Olson-Schmidt Const. Co., 248 S.W. 929; Shuck v. Moore, 232 Mo. 649, 135 S.W. 59; Sport v. Ozark Land Co., 186 Mo. 656, 85 S.W. 556; Gillenham v. Brown, 187 Mo. 181, 85 S.W. 1113; Dent v. Investors' Security Assn., 254 S.W. 1081. (3) The judgment and proceedings in said tax suit were void as to the deed of trust now held by the E.B. Gee Land Company for the reason that George W. Hobbs, the cestui que trust mentioned in said deed of trust, was dead at the time the suit was filed and neither his legal representatives nor assignees were made parties to the tax suit. A judgment against a dead man is a nullity. Crosley v. Hutton, 98 Mo. 196; Wengler v. McComb, 188 S.W. 76; LaClede Land Co. v. Goodno, 181 S.W. 410; Keaton v. Jorndt, 168 S.W. 734; Jacobs v. Trimble, 310 Mo. l.c. 157, 274 S.W. 1075; Graves v. Ewart, 99 Mo. 13; Jaicks v. Sullivan, 128 Mo. 186, 30 S.W. 890; Wolf v. Brown, 142 Mo. 617, 44 S.W. 732; Hinkle v. Kerr, 148 Mo. 47, 49 S.W. 863; Shea v. Shea, 154 Mo. 599, 55 S.W. 869; Rothenberger v. Garrett, 224 Mo. 198, 123 S.W. 574. (4) Where a trustee mentioned in a deed of trust is properly named but no judgment is obtained against the cestui que trust, such cestui que trust is not bound by the judgment, nor, if the cestui que trust be dead, is such judgment binding upon his heirs, representatives or assigns. Graves v. Ewart, 99 Mo. 17; Williams v. Hudson, 93 Mo. 524; Falvey v. Hicks, 286 S.W. 385; Stafford v. Fizer, 82 Mo. 393; Walker v. Mills, 210 Mo. 694, 109 S.W. 44; State ex rel. McKinney v. Davidson, 315 Mo. 554, 286 S.W. 355. (5) The E.B. Gee Land Company as the owner and holder of the note secured by the deed of trust on the lands in controversy had a sufficient interest in the land to authorize it, under the statute, now in force in Missouri, to redeem the lands from the holder of the tax certificate. Sec. 11145, R.S. 1939; State ex rel. Buder v. Hughes, 166 S.W.2d l.c. 518; State ex rel. Crites v. Short, 174 S.W.2d l.c. 822. (6) Under the Jones-Munger tax law, the owner and holder of the tax certificate does not obtain title to the land but merely an inchoate interest that may ripen into title, if there is no redemption by the owner or other interested parties. State ex rel. Crites v. Short, 174 S.W.2d 821; Hobson v. Elmer, 163 S.W.2d 1020; City of St. Louis v. Koch, 156 S.W.2d 1; Harrell v. Surface, 165 S.W.2d 322. (7) But title remains in the name of the owner during the period of redemption and, in the case at bar, such owner was J. H. Enright. State ex rel. v. Baumann, 153 S.W.2d 31.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

Mandamus. Relator seeks a deed under the Jones-Munger delinquent tax law (Laws 1933, p. 425 et seq.) from the Collector of Revenue of New Madrid county (Laws 1933, p. 438, Sec. 9957) to 98.16 acres in the Southeast quarter, East of Little river, of Section 4, in Township 22 North, Range 13 East, New Madrid county, Missouri. The broad issue for determination is whether the beneficiary (endorsee) of a note secured by a deed of trust on real estate may redeem (Laws 1933, p. 437, Sec. 9956a) the land from a sale had under the Jones-Munger delinquent tax law where an action for delinquent taxes prior to the effective date of the Jones-Munger law failed to name the then holder of said note as a party defendant (he being unknown to the tax collecting authorities or their attorneys) but named "the last owner of record as shown by the county . . . records at the time the suit was brought" (R.S. 1929, Sec. 9953), when said owner of record had departed this life prior to the institution of said tax suit. We think the court's denial of a peremptory writ of mandamus proper and its action should be affirmed.

J. H Enright is the common source of title. June 15, 1928, he made, executed, and delivered a deed of trust to G. C. Hill, trustee for George W. Hobbs, upon the land to secure his $ 3,500 note, due and payable on June 15, 1938. This deed of trust was duly recorded. On June 8, 1932, George W. Hobbs, the named payee died; he previously having endorsed and transferred the said note. More than two months thereafter, on August 13, 1932, the State of Missouri, acting through the Collector of New Madrid county, instituted an action for taxes delinquent on said land, naming as defendants, so far as material, J. R. Enright, G. C. Hill, Trustee for George W. Hobbs, and George W. Hobbs. Non est returns having been made, proof of service by publication was shown as to defendants J. R. Enright, G. C. Hill, Trustee for George W. Hobbs, and George W. Hobbs. The tax suit then proceeded to judgment and, according to the execution, the land was sold December 10, 1934, to one Steel. Neither the Collector nor his attorney had personal knowledge that the land was owned by J. H. Enright or that George W. Hobbs had died prior to the institution of the delinquent tax suit. The land was next sold for delinquent taxes under the Jones-Munger law on November 1, 1937. Jesse H. Wilkins, relator here, was the purchaser for $ 46.00. The E.B. Gee Land Company became the owner of said Enright $ 3,500 note and deed of trust sometime in 1936 and on October 29, 1939, within the time allowed for redemption (Sec. 9956a, supra) paid to the County Collector for the use of the purchaser the full amount of the purchase price, taxes, et cetera, as required for redemption. The Collector tendered the money to Mr. Wilkins. He refused to accept it, and immediately instituted this action in mandamus to compel the execution and delivery of the Collector's deed to the real estate.

Relator argues that, since the tax collecting authorities representing the State did not know of Hobbs' death at the time of instituting or during the pendency of the suit for delinquent taxes in 1932-1934, and since the suit was instituted and prosecuted as R.S. 1929, Sec. 9953 specifically provided, i.e., that "all actions commenced under the provisions of this chapter [the chapter relating to 'Taxation and Revenue'] shall be prosecuted . . . against the owner of the property, if known, and if not known, then against the last owner of record as shown by the county . . ....